I. Introduction — How “Free Speech” Became a Side to Root For

If you only learned about free speech from American politics in the last 25 years, you could be forgiven for thinking it’s a partisan brand rather than a constitutional principle. One election cycle, free speech is a conservative rallying cry against “cancel culture” and “Big Tech censorship.” Another cycle, it’s a progressive slogan against government surveillance, bans on books, or gag orders on teachers. The banners keep changing color, but free speech is supposed to live in the rulebook, not on one side’s uniform.

Underneath those shifting slogans, though, something quieter has been happening. Both major parties have grown increasingly comfortable with the idea that certain kinds of speech are too dangerous, too destabilizing, or simply too offensive to tolerate. What changes is not the impulse to restrict, but the justification: national security, public safety, preventing harm, fighting disinformation, protecting children, defending democracy. The list changes, but the move is the same: carve out one more exception when speech cuts against your own side.

The irony is that the legal First Amendment regime in the United States remains, historically speaking, very strong. Supreme Court cases like Cohen v. California—the one that protected a guy wearing a jacket that said “Fuck the Draft” in a courthouse corridor—are still the background law of the land. In that case, the Court held that the state could not punish him just for a four-letter word that offended people; offense alone was not a sufficient reason to criminalize speech. (Legal note: Cohen v. California, 403 U.S. 15 (1971).)